The ruling comes in the Department of Justice’s civil lawsuit against Dillard for violating the Freedom of Access to Clinic Entrances (FACE) Act, the federal law that prohibits threatening or otherwise interfering with access to abortion clinics or providers.

Dillard is a notorious anti-choice radical with ties to Scott Roeder, the confessed murderer of Dr. George Tiller. In 2011, after Tiller’s murder, Dillard sent a letter to Means. At the time Dillard sent the letter, Means was preparing to start offering abortion services at the clinic of the late abortion provider. In the letter to Means, Dillard presented a “vision” of what Means’ life would look like should she start providing abortions in Wichita, Kansas. In that letter, Dillard explained how thousands of people from across the country were already scrutinizing Means’ background. Soon, Dillard promised, they would know “your habits and routines. They know where you shop, who your friends are, what you drive, where you live,” Dillard wrote. “You will be checking under your car every day—because maybe today is the day someone places an explosive under it.”

Based on the content of that letter, the DOJ sued Dillard under the FACE Act. According to the DOJ, those statements concerning explosives were sufficient to constitute a threat against Means. But Dillard disagreed, arguing they were nothing more than an exercise of her First Amendment rights because the comments were not sufficiently specific to constitute a “true threat.” In August 2013, a federal judge agreed with Dillard and dismissed the claims against her ruling Dillard’s statements were constitutionally protected speech. The justice department appealed that ruling in October, and on Tuesday the Tenth Circuit finally issued its opinion.

According to the Tenth Circuit, the question of whether or not Dillard’s letter to Means constituted a “true threat” should be left for a jury to decide. The federal appeals court said the DOJ had provided enough evidence that a reasonable person could conclude the letter was a threat and therefore a violation of the law. “A reasonable jury could find that Defendant’s letter conveys a true threat, that she subjectively intended to threaten Dr. Means, and that she wrote to Dr. Means in order to intimidate her from providing reproductive health services,” the court wrote.

The court also rejected Dillard’s argument that the Religious Freedom Restoration Act bars any punishment based on Dillard’s “religious expression of her views about abortion to Dr. Means,” noting Dillard only first made that argument during the appeal process.

The ruling sends the case back to the lower court for trial. In the meantime, Dillard could ask the Tenth Circuit to reconsider its decision.

See more of our coverage on the misleading Center for Medical Progress video here.

The face behind the heavily edited, misleading video purporting to show that Planned Parenthood illegally sells human tissue is fresh and young; it belongs to 26-year-old David Daleiden.

But the muscle behind Daleiden consists of longtime anti-choice operatives who have worked for decades to criminalize abortion and take down abortion providers. Among these operatives is Troy Newman, who is an original founder of Daleiden’s Center for Medical Progress (CMP).

Newman runs Operation Rescue, an anti-choice activist group, which relocated to Wichita, Kansas, in 2002 to continue what ended up being a decades-long intimidation campaign to take down the practice of late-term abortion provider Dr. George Tiller, whom Operation Rescue frequently referred to as “Tiller the Killer.”

When anti-choice activist Scott Roeder murdered Tiller at his church in 2009, Newman condemned the killing, but his group has continued to be associated with activists who promote violence against abortion providers and clinics.

Though Roeder was not directly affiliated with Operation Rescue, he was associated with the organization: He wrote comments on the group’s website invoking violent thoughts against abortion providers, and authorities found a Post-It note with an Operation Rescue leader’s number in his car the day he killed Tiller.

Ms. Magazine reported in 2010 that Roeder said Newman had told him during a lunch meeting that it would not upset him if an abortion provider were to be murdered, but Newman denied ever meeting Roeder. And though Operation Rescue’s official position at the time was to denounce Tiller’s murder, the group’s founder and former president, Randall Terry, told reporters that Tiller’s death was vengeance for the abortions he performed—comments that Operation Rescue and other anti-choice groups disavowed.

It was Sullenger’s number that Roeder allegedly had on that Post-It note the day he gunned down Tiller.

Threats to murder a new abortion provider resurfaced in Wichita two years ago, when Dr. Mila Means attempted to start a practice in a new abortion facility opened by Tiller’s former colleague Julie Burkhart. Extremist Angel Dillard, who has volunteered for Kansans for Life, sent a death threat and was charged under the Freedom of Access to Clinic Entrances (FACE) Act.

In an in-depth story for Religious Dispatches in 2013, Kathryn Joyce reported that Newman had a cavalier attitude toward accusations that his group helps to incite violence against abortion providers. Though there is no evidence that Newman or his group associated with Dillard, Operation Rescue was heavily engaged in campaigning to prevent Means from practicing in Wichita.

Joyce described Operation Rescue’s Wichita offices as being located on the same stretch of blocks as many anti-choice groups in the area, including Kansans for Life.

Neither Newman nor CMP responded to multiple requests for comment. In a press release published on Tuesday, the day CMP published its video, Operation Rescue said that Newman advised Daleiden and provided “consultation services and material support” during the center’s three years working on this project to attack Planned Parenthood.

Newman told the Boston Heraldthat CMP has “thousands upon thousands of hours of video and notes” related to Planned Parenthood and that group plans to publish its next video next week.

The eight-minute video Daleiden’s group published this week was edited to make it look as though Planned Parenthood’s senior director of medical services was describing a practice of selling fetal body parts.

Both Daleiden and Newman have claimed they have evidence showing that Planned Parenthood officials have engaged in the illegal activity of trafficking fetal body parts for profit, though they have yet to present the evidence.

Newman told the Boston Herald that that the center has activists embedded at Planned Parenthood who are feeding the group information.

The case involves Anthony Elonis, who was convicted in 2011 under federal law for posting a series of threatening messages on his Facebook page. Elonis defended the statements as constitutionally protected free speech, claiming the Facebook statements were not threats but instead rap lyrics.

The legal question before the Court was: At what point do violent and abusive statements stop being considered a free speech right and instead become criminal speech?

The Court sidestepped that question almost entirely. Ruling that the jury had been wrongly instructed on the level of intent prosecutors needed to show to convict Elonis of making online threats, the Supreme Court overturned his conviction, sending the case back to the appeals court to sort out.

Writing for the 7-2 majority, Chief Justice John Roberts said the federal government needed to prove more than that a defendant was negligent in making online threats or that a reasonable person would regard the statements as a threat in order to be convicted under the law at issue.

Elonis’ conviction was based solely on whether a reasonable person would have viewed his statements as threats, and while that standard is enough to impose civil liability in some cases, it is not enough to impose criminal liability here, Roberts wrote. “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing,” he wrote. In other words, it’s not enough that a reasonable person would feel threatened by Elonis’ statements; prosecutors needed to show that Elonis understood his online statements could be construed as threats.

On the central issue of the case, however—what constitutes a “true threat”—the majority punted, hanging its decision on the flawed jury instruction and declining to decide the rest of the case. “It is unnecessary to consider any First Amendment issues,” Roberts wrote.

Justice Samuel Alito filed a separate opinion, concurring with the majority on some points and dissenting in others. Where the majority failed to answer the question of whether Elonis’ statements were actual threats or whether they were constitutionally protected free speech, Alito stepped up, holding that he would have rejected Elonis’ constitutional claims. “Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace,” wrote Alito. “A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.”

While the statute at issue in Elonis did not directly impact abortion providers, reproductive rights and justice advocates were closely watching the case given the prevalence of threats levied against them. “Abortion providers are invested in the issue decided today because targeted harassment in the form of threats against them are an all-too-common occurrence,” David Cohen, associate professor of law at Drexel University and co-author with Krysten Connon of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism told RH Reality Check via email.

Cohen was critical of the majority’s decision:

The majority decision has the potential to create too much of a barrier to proving an intent to threaten. Justices Alito’s and Thomas’ separate opinions show a much better understanding of what it means to threaten and be threatened. They realize that context matters, something important to abortion providers who work in a field in which eight of their fellow providers have been murdered since 1993.

While there are not currently any cases before the Court involving threats to abortion providers, the issues raised in Elonis are echoed in cases pending in other courts where anti-abortion activists have tried to raise First Amendment free speech defenses against charges of stalking and harassing providers. Cohen continued:

Importantly, though, Elonis is about a different statute than what usually applies to threats of abortion providers. The Freedom of Access to Clinic Entrances Act applies to abortion providers and has different wording. Given the legislative history of FACE and its different language, there are strong reasons to interpret [FACE] in a different manner than how the Court interpreted the law at issue today and to view the context of anti-abortion violence as a key part of what is a threat of force and what intimidates an abortion provider.

Elonis’ case will return to the U.S. Court of Appeals for the Third Circuit, where the parties will try and sort out what evidence is needed for a conviction and what level of intent prosecutors need to prove. Elonis’ attorney will also likely try and argue his client cannot be re-tried because of constitutional protections against “double jeopardy.”

Meanwhile, federal prosecutors and courts across the country are also left with the task of figuring out just exactly what kind of evidence they need to convict someone of making online threats, as the issue of Internet safety isn’t going away anytime soon. The only guidance from today’s opinion says mere negligence, or being unaware of the legal consequences, is not enough for prosecutors to convict someone of sending online threats. But those communities subjected to the most vicious online abuses still have next-to-no legal recourse while the courts muddle through the mess the Roberts Court left behind today.

If there’s a silver lining in today’s opinion, it is that the Court was poised to make this situation so much worse by essentially wrapping the worst online trolling in the First Amendment and it didn’t.

Even though the 113th Congress was the least productive in modern history, it did manage to do some work to proactively fight for reproductive rights.

A new report from the Center for Reproductive Rights finds that while the 113th Congress saw no shortage of anti-choice legislation, it also marked the beginning of a surge of pro-choice activism from lawmakers who normally take a more defensive posture on reproductive freedom.

Reproductive rights advocates also took to the Hill to push for ending the Hyde Amendment, which prohibits Medicaid funding for abortion care and disproportionately affects women of color and poor women.

Congress hasn’t passed a law actively protecting abortion rights since 1994, when the Freedom of Access to Clinic Entrances (FACE) Act responded to widespread anti-choice violence by outlawing violence or obstruction at reproductive health clinics.

Abortion rights were in crisis in the 1990s due to the threat of clinic violence, the report’s authors said, and they are in crisis again today with the hundreds of medically unnecessary restrictions on abortion passed at the state level in the past few years.

This sense of crisis seems to be motivating pro-choice members of Congress to do more than just try to stop the latest anti-choice attack on Roe v. Wade.

Unlike the FACE Act, however, almost none of the pro-choice measures introduced in the last Congress actually passed the Republican-dominated House or the filibuster-blockaded Senate—except the Peace Corps abortion parity rule change, which finally made it through in the new spending bill.

But that change, while hailed as a victory by reproductive rights advocates, was a relatively small one. It only gave Peace Corps volunteers the same very limited abortion coverage that all other federal employees already have.

Anti-choice legislators will also benefit from the status quo on issues like the Hyde Amendment or the ban on Washington, D.C. funding abortion coverage through Medicaid. Those provisions aren’t permanent law, but they are habitually renewed every year, and failing to do so is still seen as a political non-starter.

Still, according to the report, pro-choice advocates seem encouraged by the pushback against anti-choice forces in Congress, and expect that trend to continue in 2015 and beyond.

The Roberts Court first let stand a federal appeals court ruling reinstating key portions of a New York City law regulating so-called crisis pregnancy centers. New York City lawmakers in 2011 passed a law that places three specific truth-in-advertising disclosure requirements on crisis pregnancy centers. First, CPCs must have a “status disclosure” requirement in which they must disclose whether or not they have a licensed medical provider on staff who provides or directly supervises services.

Second, CPCs must disclose a “government message” that the New York City Department of Health encourages women who are or may be pregnant to consult with a licensed provider.

CPCs must also make specific “services disclosures” to clients as to whether they provide referrals for abortions, emergency contraception, or prenatal care.

The law stipulates that these disclosures must be provided at entrances and waiting rooms, in any advertising done by the CPC, and during telephone conversations with potential clients. Failure to follow the disclosure requirements results in civil fines and the possibility of the facility closing for repeated violations.

Conservative legal advocacy groups sued to block the law on behalf of several religious nonprofits operating CPCs in the area shortly after it was passed, arguing that it violated the First Amendment.

In June 2011, a lower court agreed and blocked the law, temporarily preventing it from taking effect. Attorneys for the city appealed, and in January 2014 a panel of judges on the U.S. Court of Appeals for the Second Circuit reversed in part the lower court ruling and reinstated the “status disclosure” portion.

However, the federal appeals court did not reinstate the “services disclosure” or “government message” portions of the law. According to the Second Circuit judges, New York could require CPCs to make disclosures about medical providers because the professionals are related to its ability to “protect the health of its citizens and combat consumer deception in even the most minimal way.”

Furthermore, the court held, New York has a compelling interest in protecting consumers from well-documented deceptive practices of CPCs, many of which the court noted were located near Planned Parenthood health-care clinics and had misleading names and signage.

However, the Second Circuit ruled, the law’s requirement that centers disclose whether they provide referrals for emergency contraception, abortions, or prenatal care were likely unconstitutional.

The Roberts Court also refused to take up the case of Jo Ann Scott, a Colorado woman who was convicted in 2010 of violating a Colorado law that makes it a crime to “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a health care facility” after a jury found she made physical contact with a woman trying to enter a Planned Parenthood clinic in Denver.

Scott challenged her conviction, arguing the law was unconstitutionally vague and too broad, but a federal appeals court disagreed. After last summer’s decision in McCullen v Coakley, unanimously striking down as unconstitutional a Massachusetts buffer zone law, anti-choice advocates urged the Roberts Court to take up Scott’s case. They argued that the McCullen decision made it clear that “there is no right to be protected from ‘uncomfortable’ speech on public streets and sidewalks.”

Scott is a familiar player in litigation concerning clinic access. The Department of Justice in 2011 filed a federal complaint against Scott for violating the Freedom of Access to Clinic Entrances (FACE) Act, alleging that Scott used force against a patient on April 2, 2010, and against a companion of a patient on June 9, 2010, with the intent to injure, intimidate or interfere with their efforts to obtain reproductive health services.

The complaint alleged that Scott’s husband, Kenneth Scott, violated FACE by engaging in ten incidents in which he physically obstructed patients and staff who were attempting to enter or exit the Planned Parenthood of the Rocky Mountains. In October 2011, Scott settled that lawsuit and agreed to pay monetary damages to each of her alleged victims of harassment.

The Department of Justice also filed FACE Act claims against her husband, Kenneth. In March 2012 that lawsuit was dismissed after a federal court refused to issue an order blocking Kenneth Scott’s protest activities.

While witnesses on both sides of the issue claimed to be in favor of protecting women’s health, anti-choice witnesses relied heavily on debunked science and distorted interpretations of the bill to make many of their claims.

A woman’s access to safe reproductive health care “shouldn’t depend on her ZIP code,” multiple witnesses said during a Senate committee hearing Tuesday on the Women’s Health Protection Act (WHPA), which would invalidate numerous state restrictions on abortion. While witnesses on both sides of the issue claimed to be in favor of protecting women’s health, anti-choice witnesses relied heavily on debunked science and distorted interpretations of the bill to make many of their claims.

The WHPA, sponsored by Sen. Richard Blumenthal (D-CT), is a response to a wave of hundreds of state laws restricting abortion that have passed in the last several years. Anti-choice supporters of these kinds of bills claim they merely protect women’s health by regulating abortion, but the effect of laws like these has been to close numerous safe clinics, force women to make extra trips to the doctor or undergo medically unnecessary procedures, and otherwise impede access to safe, legal abortion care.

Blumenthal called such laws a “pernicious charade” during the Senate Judiciary Committee hearing. His bill would ban a list of specific types of anti-choice laws, as well as laws similar to those listed if they single out abortion providers. It specifically excludes parental notification laws, insurance coverage restrictions, and any laws involving clinic violence.

Nancy Northup, president of the Center for Reproductive Rights, recalled linking arms with fellow citizens 25 years ago to keep Operation Rescue protesters from blocking the doors to an abortion clinic—the kind of physical obstruction later prevented by the Freedom of Access to Clinic Entrances (FACE) Act. But now, she said, the blockade is legislative: “Today, women’s access to abortion services is being blocked through an avalanche of pretextual laws designed to accomplish by the pen what could not be accomplished through brute force—the closure of facilities providing essential reproductive health care to the women of this country.”

Northup noted that major respected medical groups, including the American Medical Association and the American Congress of Obstetricians and Gynecologists, endorse the WHPA.

The committee also heard from Dr. Willie Parker, a doctor at Mississippi’s last remaining abortion clinic which is under threat of closure. Mississippi’s TRAP (targeted regulation of abortion providers) law requires abortion providers to have admitting privileges with a local hospital, but Parker has been denied them, despite previously having had admitting privileges in Chicago. He testified that many hospitals declined even to evaluate his application; it’s common for hospitals to deny admitting privileges for abortion doctors for political or PR reasons. Admitting privileges are “irrelevant,” Parker said, because patients will be admitted to the nearest hospital regardless in the event of an emergency.

Parker said he continues working in Mississippi because he feels a moral calling to do so. “Some people ask if I am concerned for my own safety,” he said. “Of course I am. But I am less concerned for my safety than for what will happen to women if I am not there to provide the care they need and deserve.”

Anti-choice OB-GYN Monique Chireau claimed that admitting privileges are denied for reasons of competence, not politics. She also cited several widely-discredited studies on the alleged dangers of abortion, including one about mental health problems resulting from abortion that was found to have serious flaws, and one with likely-inflated claims of complications from abortion in Finland that is not supported by other studies on complications.

Sen. Lindsey Graham (R-SC) questioned Northup relentlessly, often talking over her, about whether the law would affect so-called “conscience clauses” (it’s not intended to and doesn’t mention them) and whether she could name any state that would be able to keep its waiting period laws if the WHPA passed. Northup didn’t mention a specific state in the hearing, but said that waiting periods could stand if they didn’t last too long.

Amy Friedrich-Karnik, federal policy advisor at the Center for Reproductive Rights, clarified to RH Reality Check that as long as a waiting period law did not require an extra, medically unnecessary visit to a doctor’s office or a crisis pregnancy center, it would likely stand. Many states, for instance, have 24-hour waiting periods that only require a phone counseling session before the appointment, which reduces the burden on working women who can’t afford to take multiple days off of work or child care.

National Right to Life Committee (NRLC) President Carol Tobias invoked the horrific case of Dr. Kermit Gosnell to suggest that abortion needs to be more strictly regulated. But NRLC’s state legislative director recently admitted in a speech that abortion carries fewer risks than childbirth, and pro-choice advocates argue that restricting access to safe abortion risks creating more Gosnells.

Tobias also called the WHPA the “Abortion Without Limits Until Birth Act,” mischaracterizing both the bill’s intent and its contents. Certain restrictions could remain in place, and states would still be able to restrict abortion after fetal viability, as long as there are exceptions for rape, incest, and the life or health of the pregnant woman. That’s the standard set by the Supreme Court in Roe v. Wade, and that’s the standard the bill’s supporters want to see the states return to in a uniform way.

Since 1977, the National Abortion Federation (NAF) has documented eight murders, 17 attempted murders, 42 bombings, 181 arson cases, 399 invasions, 100 acid attacks, and 663 bioterrorism threats targeting abortion providers and their facilities. A September 2013 survey of U.S. NAF members found that nearly 90 percent of providers had a patient entering their facility express concerns about their personal safety. At the Daily Beast, Sally Kohn reminds us that within an hour of the 1994 murders of abortion clinic workers in Massachusetts, which led to the eventual creation of clinic buffer zones, a woman called one of the clinics attacked and told the staff person who answered, “You got what you deserved.” Meanwhile, Donald Spitz, the director of Pro-Life Virginia, thanked John C. Salvi publicly for his murders as throngs of supporters cheered along enthusiastically outside the prison holding Salvi.

“Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation,” Roberts wrote. “Petitioners take a different tack.”

He continues:

They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

But to suggest that the Massachusetts buffer zone fight, or any buffer zone fight for that matter, is about people like McCullen who maintain a “caring demeanor” as they approach patients and employees requires some considerable intellectual gymnastics and selective storytelling. Chief Justice Roberts is up for the task. “Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them,” Roberts writes. “Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.”

The thing is, as sympathetic a plaintiff as McCullen may be to some, judicial decisions are supposed to be grounded in legal reasoning, not sympathetic narratives. And the legal reasoning put forth by the chief justice in striking the Massachusetts buffer zone law is thin.

The last time the Supreme Court waded into the waters of abortion protesters, free speech, and government regulation was in the 2000 case Hill v. Colorado. There, the Court upheld a 1993 Colorado law that restricted demonstrations around health-care facilities by providing that protesters cannot come within 100 feet of any facility entrance generally while also prohibiting them from approaching within eight feet of a patient (without their consent) for the purpose of demonstrating at them—activities that are more or less what the plaintiffs in McCullen characterized as “sidewalk counseling.”

Restrictions on speech and speech activities like protesting are constitutional so long as they are content neutral, narrowly tailored to serve a significant government interest, and leave open ample channels for communication. In Hill v. Colorado, the majority ruled Colorado had a compelling interest in protecting its citizens from unwanted communication while not curtailing that communication entirely; although speakers have a right to persuade, the majority held, listeners also have a right to “be let alone.”

The Roberts Court had the chance to overrule Hill in McCullen, and it chose to punt instead. But the fact that Hill remains in place (for now) may not matter. Unlike Hill, where the Court framed its analysis on the impact of protesters’ actions and harassment on patients, the Court in McCullen has next to nothing to say about the impact of protester and “sidewalk counseling” speech on the listeners. After first, briefly, recognizing the legitimate public health and safety interest in keeping clinics harassment-free, Roberts turns his attention to what he sees as the real danger here.

At the same time, the buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.”

Roberts continues:

These burdens on petitioners’ speech have clearly taken their toll. Although McCullen claims that she has persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, she also says that she reaches “far fewer people” than she did before the amendment. Zarrella [another petitioner] reports an even more precipitous decline in her success rate: She estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since. And as for the Worcester clinic, Clark testified that “only one woman out of 100 will make the effort to walk across [the street] to speak with [her].”

The buffer zones have also made it substantially more difficult for petitioners to distribute literature to arriving patients. As explained, because petitioners in Boston cannot readily identify patients before they enter the zone, they often cannot approach them in time to place literature near their hands—the most effective means of getting the patients to accept it. In Worcester and Springfield, the zones have pushed petitioners so far back from the clinics’ driveways that they can no longer even attempt to offer literature as drivers turn into the parking lots. In short, the Act operates to deprive petitioners of their two primary methods of communicating with patients.

In other words, buffer zones work. So they’ve got to go.

As I noted here before the Court’s decision, one of the biggest differences between the Hill decision and McCullen is the composition of the Court. Justice Alito replaced Justice Sandra Day O’Connor, and the Court hasmoved further to the right. But now that we have the McCullen decision, I think another big difference is the Roberts Court decision in Gonzales v. Carhart, which in 2007 upheld the federal “Partial-Birth Abortion Ban Act of 2003.” In that decision, Justice Anthony Kennedy, writing for the 6-3 majority, justified upholding the ban in large part based on the unsubstantiated idea of abortion regret. “It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote in Gonzales.

Is it any surprise then that a Court that so readily assumes to know what women do and do not regret as a means of upholding one anti-choice law would latch on to the unsubstantiated testimony of McCullen to strike at legislation designed to protect the rights of those very women Justice Kennedy concern-trolls in Gonzales?

I hate to say it, but it gets worse: Next term, the Roberts Court will hear the case of Elonis v. United States, a case that questions the constitutionality of laws that criminalize online threatening speech. At the heart of Elonis is a fight over what is and is not a “true threat”—the very question also at the heart of the emerging legal challenges to targeted, individual instances of clinic and provider harassment under the Federal Access to Clinic Entrances (FACE) Act and state-level anti-harassment and anti-stalking laws. The majority in McCullen points to these kinds of laws as proof that the Commonwealth of Massachusetts did not narrowly tailor its buffer zone law enough. If states and localities are so concerned about clinic violence, Roberts writes in McCullen, then they should look first to these laws, which in the Court’s opinion are far better suited to address instances of violence and harassment. Of course the opinion in McCullen is silent on the looming threats to even those protections.

Thursday’s decision didn’t strike down all buffer zones per se, but I suspect we’ll see more legal challenges to other buffer zones with anti-choice activists continuing to argue that Hill v. Colorado should be overturned. And if the Roberts Court’s approach to abortion rights is anything like its approach to voting rights or affirmative action policies, then we will see exactly that happen. Which brings us back to our gentle, plump grandma and the very smart choice by the anti-choice right to put her front-and-center in this fight. After all, what better way to make the case for gutting protections for patients and providers then to flip the script and make grandma the real victim.

The Supreme Court has announced it will take up a case involving Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of threatening messages on his Facebook page.

On Monday, the U.S. Supreme Court announced it would take up a case involving the issue of when violent statements made online count as actual threats and when such statements are considered free speech under the First Amendment.

The case involves Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of threatening messages on his Facebook page. According to court documents, Elonis began making violent and threatening public statements on Facebook shortly after his wife and their two small children moved out. Elonis also began acting out at the amusement park where he worked, Dorney Park and Wildwater Kingdom—among other things, he engaged in behavior that led to a co-worker filing five sexual harassment complaints against him. At one point he posted a picture of himself in costume, taken during the park’s Halloween Haunt, holding a knife to the neck of that co-worker, with the caption “I wish.” Elonis’ supervisor saw the post and fired him the same day.

After he was fired, Elonis’ posts became increasingly violent. According to court documents, Elonis’ Facebook statements included threats to kill his ex-wife, blow up the sheriff’s office, shoot up a kindergarten, and attack former co-workers. According to court documents, Elonis’ ex-wife testified that she felt like she was being stalked by Elonis’ posts, and that she was “extremely afraid” after statements like these appeared:

there’s one way to love you but a thousand
ways to kill you. I’m not going to rest until
your body is a mess, soaked in blood and dying
from all the little cuts….

The statements were enough for a court to grant Elonis’ ex-wife a protection from abuse (PFA) order.

Despite the court order, Elonis defended the statements, saying they were meant to be rap lyrics in the style of Eminem, and that he never intended the posts to be threats. During the trial, Elonis’ ex-wife testified that during their seven years of marriage Elonis rarely listened to rap music and she had never seen Elonis write rap lyrics. According to his ex-wife, the lyric form of the statements did not make her take the threats any less seriously. After the court granted the PFA, Elonis posted the following:

Fold up your PFA and put in in your pocket
Is it thick enough to stop a bullet

By this time the FBI was monitoring Elonis’ posts; his former employer had contacted the agency regarding Elonis’ threats against his former co-workers. FBI Agent Denise Stevens contacted Elonis after this appeared on his Facebook page:

That’s it, I’ve had enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
imagined
And hell hath no furry like a crazy man in a
kindergarten class
The only question is…..which one?

After Stevens visited Elonis, he posted more misogynistic and violent statements in which he fantasized about killing his wife and Stevens.

The question of what constitutes free speech and what constitutes criminal threats is one federal courts have struggled with, especially after 2003, when the Supreme Court, in Virginia v. Black, ruled that burning a cross could sometimes count as free speech. Since then, courts faced with the issue have split on whether to prove a statement is a “true threat” prosecutors must prove (beyond a reasonable doubt) that the speaker intended the statement to be a threat or whether a “reasonable person” would find the statement threatening. According to Elonis’ attorneys, whether or not Elonis’ statements were criminal threats depends on whether Elonis intended them to be actual threats, which they say he did not. In fact, Elonis’ attorneys claim their client wasn’t threatening anyone—they say he was just imitating Eminem.

In granting review, the Roberts Court is set to look at both this question of whether the “subjective intent” of the speaker governs generally for purposes of the First Amendment, but also specifically what standard applies to the statute under which Elonis’ was convicted. This statutory question was added by the Court when it decided to grant review, and leaves open the possibility of a narrow ruling.

But a broad ruling from the Court could have far-reaching consequences. Extreme anti-abortion advocate Angel Dillard has claimed her letter promising explosives under the car of Kansas abortion provider Dr. Mila Means did not violate the Freedom of Access to Clinic Entrances (FACE) Act because it wasn’t a “true threat.” Dillard sent the letter to Means to dissuade her from performing abortions in Wichita after the murder of Dr. George Tiller. Dillard also sought to exclude her jailhouse communications with Tiller’s confessed murder, Scott Roeder, as protected by a “ministerial exception,” claiming she was visiting Roeder to minister to him.

Then there’s the case of Mark Holick, a pastor who argues that his “wanted”-style poster featuring the picture and home address of a Wichita abortion clinic operator is also protected speech.

Ultimately, though, the outcome of the case could turn on how seriously the Supreme Court takes online threats, and especially online threats against women. Elonis’ case is littered with his violent threats, but even if the court finds him an unsympathetic plaintiff, that’s not the same as believing his actions were criminal threats. Maybe that’s not entirely a bad thing. After all, in First Amendment terms the answer to bad speech is usually more speech.

But if the Court holds Elonis’ statements were not threats but instead run-of-the-mill First Amendment misogyny, where does that leave us? If a notorious anti-abortion radical can defend sending a letter to an abortion provider in which she says there will be a bomb under her car by claiming that she didn’t mean it, what then? Like the First Amendment fight over abortion clinic buffer zones in McCullen v. Coakley, the First Amendment fight in Elonis is as much a fight over whether or not the law should recognize a right to be left alone. But just like McCullen, given the fact that the speech in question primarily targets women, I’m not that hopeful a majority of justices on the Roberts Court will agree they were criminal threats.

This weekend will mark five years since the brutal murder of Dr. George Tiller by anti-choice activist Scott Roeder, and I’m trying hard to be somber—I’m trying hard to reflect. But in truth I’m angry and not really looking for perspective. I’m angry that in the five years since Dr. Tiller was gunned down while attending church, this country has witnessed an explosion of anti-choice legislation and a ratcheting up of violent, misogynist rhetoric that has many of us wondering when the next act of targeted clinic and provider violence will happen. I’m angry that anti-woman, pro-gun ideologies continue to get a pass from a media establishment whose job it is to question, push, prod those beliefs. And I’m angry that our legal system is only making this environment worse.

Even before Dr. Tiller’s murder, our legal system was woefully inadequate at dealing with anti-choice violence. According to the National Abortion Federation, since 1977 there have been eight murders, 17 attempted murders, 42 bombings, 181 incidents of arson, and thousands of incidents involving other criminal activities. In 1993, after the murder of Dr. David Gunn and a year of targeted anti-abortion violence that included 12 incidents of arson, one bombing, and 66 blockades of clinics, Congress passed the Freedom of Access to Clinic Entrances (FACE) Act. The law is designed to protect providers and clinics by forbidding the use of “force, threat of force or physician obstruction,” to prevent someone from providing or receiving reproductive health services.

The FACE Act addressed the worst of the clinic blockades, but its limitations that were apparent then have become glaringly obvious today. Anti-choice activists have not stopped targeting providers with threats of violence, but have instead floated the legal theory that those threats are protected forms of free speech. Instead of limiting their harassment to providers and their patients, anti-choice activists have started to target journalists and clinic escorts as well, individuals who are not protected under the FACE Act.

And as the murder of Dr. Tiller drove home, anti-choice activists are not content to limit their violence to outside of clinics either.

Just as anti-choice activists have expanded who they target for intimidation and violence, conservative politicians have expanded their attacks on reproductive autonomy, proudly declaring their intentions to make states “abortion free.” In Alabama, at least two sitting state supreme court justices have gone out of their way to lay the legal groundwork for prosecuting women who have had legal abortions under a framework of “natural rights,” and have called on more states to do the same. Meanwhile, we’re still waiting to see if the Roberts Court will grant anti-choice activists a constitutional right to harass patients in the name of free speech, and to deny women reproductive health care in the name of corporate religious rights.

These constant legislative assaults are not designed just to marginalize abortion providers in public and political discourse in some intellectual way. They are designed to do so in a very real way—to make it too difficult to do their job and to drive them out of providing health care to patients in need. These legislative attacks also fuel the stigma surrounding reproductive health care and autonomy, reinforcing in the political debate the false dichotomy between “health care” and “reproductive health care.” No politician will ever admit on a live mic that their rhetoric feeds and fuels anti-choice violence let alone that their legislation does. But as more and more clinics are forced to close thanks to TRAP (targeted regulation of abortion providers) laws like the admitting privileges requirement in Texas, which has created a human rights crisis in the Rio Grande Valley that threatens to spread to most of the deep South and up through the Great Plains, it is harder for conservatives to escape that reality. Which in turn means it’s harder to see the possibility of more anti-abortion violence receding.

Our clinics, our providers, our patients, and our advocates and allies live under constant threat. And as their numbers shrink and clinics become more geographically concentrated, those targets become easier for anti-choice activists to identify. And that’s the point.

What relatively peaceful anti-choice protesters may not understand is that their behavior is relative: They’re a physical representation of threats that have already been made, and in some cases executed, in the past and online.

Update: This article has been updated to include additional information about the unsafe procedure performed by Kermit Gosnell that is referenced below.

On a recent Saturday morning, a middle-aged man kneels in the street in front of Planned Parenthood’s Locust Street Health Center in downtown Philadelphia. He’s one of a crowd of approximately 55 people huddled into two haphazard lines stretching approximately 15 feet from the entrance to the corner of 12th Street.

It’s just after 8 a.m.; patients are about to arrive. A young woman with her back pressed against the brick building leads a series of call-and-response prayers. Clinic escorts donning bright vests stand together silently. A civil affairs police officer looks on from across the street.

A couple approaches. They’re walking east, so they’re forced to pass through the gauntlet of protesters to get to the front door. The woman doesn’t stop walking or look at them. She strides forward, quickly. Her male companion doesn’t stop either, but he turns to glance, then glare at the crowd.

The couple continues toward an open iron gate, where they make a sharp right turn away from the crowd and toward the entrance. The way this facility is designed, a sidewalk gate leads to a garden patio area that serves as a foyer leading to the main door. When the couple walks into the building, the first person they will see is a security guard, a gray-haired man sitting in front of an appointment booklet, behind a sheet of bullet-proof glass.

Another woman enters the gauntlet. When she’s about ten feet from the gate, a protester steps out of the prayer line. She moves toward the woman, then walks alongside her.

The protester, Kyleen Finnegan, 29, is a volunteer with Generation Life, a local group that strives to “end abortion” by promoting chastity. Finnegan doesn’t know why the woman she’s talking to is going to the clinic—it could be for could be contraception, a routine appointment, or an abortion. But everyone is treated as if they are going to have an abortion.

Finnegan, visibly and happily pregnant, tells the woman that she can help her, and that everyone there loves her. She’s holding pamphlets that she offers women entering the clinic. On the inside flap, the paper is full of bullet points beneath the headings “Abortion can hurt you.” The problems range from the obvious, like cramping, to the outright erroneous, like “later infant disability.”

The information in the pamphlet was provided by the National Right to Life Educational Trust Fund.

Finnegan tells me later that she estimates that over the years, she has personally dissuaded approximately ten women from obtaining abortions, or at least from entering the clinic. Today was not one of those days. The woman she approached didn’t stop and didn’t take a pamphlet; she turned into the gate, entered the clinic, and signed in with the man behind the bullet-proof glass.

At a time when the U.S. Supreme Court is debating buffer zone laws that would protect patients visiting a reproductive health clinic from people like Finnegan, what people in the anti-choice movement might not understand is that a person doesn’t have to shoot a doctor or physically assault a patient to cause harm. It’s harmful to hand a women a piece of paper with false medical claims, and it’s harmful to be a presence that causes a woman to seek somewhere more underground.

It’s also not so much about the individual. What relatively peaceful anti-choice protesters also may not understand is that their behavior is relative: They’re a physical representation of threats that have already been made, and in some cases executed, in the past.

A Patchwork of Buffer Zones

In the early 2000s, Pittsburgh police were routinely called to mediate disputes between patients and protesters. In 2005, the Pittsburgh City Council passed a Medical Safety Zone Ordinance, Pennsylvania’s first buffer zone.

It established a15-foot, fixed no-protest zone around clinic entrances, and a floating, eight-foot “personal bubble” around each person within 100 feet of the clinic.

The following year, a routine clinic protester challenged the ordinance. She claimed it infringed on her right to free speech and freedom of the press, since she was no longer able to try to push pamphlets into the hands of patients on their way into the clinic. She also claimed that the ordinance had been selectively enforced against her (a claim the court eventually dismissed).

In 2009, a judge noted that Pittsburgh had attempted to balance “two important competing interests”: the rights citizens have to obtain medical care unimpeded, and the First Amendment rights of protesters. The court essentially ruled that the buffer zone and bubble, taken together, was invalid, but upheld that the City of Pittsburgh had the right to implement either the fixed buffer zone or the bubble. They chose to keep the buffer zone, and bothsides framed the ruling as a win.

In 2012, Harrisburg created a 20-foot buffer zone when protesters reportedly “harassed patients and staff outside the Second Street facility” after the clinic began offering medical abortions, resulting in at least six calls to the police.

Earlier this month, the York City Council proposed a 30-foot buffer zone around York health-care facilities.

But there is no buffer zone in Philadelphia, which is why Finnegan and other anti-choice protesters are able to get so close to women and their companions.

“We end up being the human buffer zone,” said Jane, a clinic escort who volunteers at Locust Street. (She asked that we not publish her last name.)

That may soon change.

State Sen. Larry Farnese (D-Philadelphia), an attorney, recently introduced a bill that would mandate a 15-foot buffer zone around entrances to health-care facilities in the state. SB 1208 is “content-neutral,” meaning it would apply to all health-care facilities, including hospitals and medical offices.

No person may knowingly congregate, patrol, picket or demonstrate in a zone extending 15 feet from any portion of an entrance to or exit from a health care facility or any portion of an entrance to or exit from a driveway or parking facility appurtenant to a health care facility.

The initiative is part of a pro-active package of women’s health bills recently unveiled by the legislature’s newly formed Women’s Health Caucus.

Installing a state-wide buffer zone is an uphill battle, politically speaking, given both the unprecedented number of state-level abortion restrictions across the country since the 2010 elections—and in Pennsylvania since the notorious 2011 Kermit Gosnell grand jury report.

But Sen. Farnese, a former volunteer clinic escort at the Philadelphia Women’s Center, told RH Reality Check that he is determined. He’s motivated, he says, by what he witnessed as an escort before joining the state senate.

“There was literally a couple feet distance between the protesters and the front door … and at times [it was] extremely intimidating,” said Farnese, adding that he recalls protesters “shoving plastic baby things” in patients’ faces.

“Sometimes, [patients] were so upset and distraught that they just turned around [and left],” Farnese told RH Reality Check. “These women are going to go somewhere. They’re going to exercise their right. The question is, are we going to allow them to exercise it safely?”

Farnese’s bill is still in the very early stages of the legislative process, awaiting approval by the Public Health and Welfare Committee.

Scare Tactics

At least one woman injured in Kermit Gosnell’s “house of horrors” clinic in West Philadelphia, where illegal, unsafe abortions took place, went there after feeling she was unable to face a mob of protesters at a clinic downtown.

Davida Johnson was 21 years old and coping with an unwanted pregnancy when she was “frightened away” by protesters at a downtown Philadelphia facility.

According to Johnson, Gosnell slapped her before tying her down to perform an unsafe abortion, a ghastly procedure that left her with a “lifelong illness“:

A few months after the abortion, she began to have gynecological problems. An examination revealed venereal disease. She blames Gosnell, 69, for the lifelong illness, which she declined to identify, and for the four miscarriages she has subsequently suffered.

It’s not just patients who are intimidated by aggressive protesters.

“Buffer zones are important not only to protect women from harassment when they exercise their constitutional rights … [they] also are an important way to protect abortion providers,” David S. Cohen, a law professor at Drexel University, told RH Reality Check.

Cohen is on the board of the Women’s Law Project, an organization that helped develop Farnese’s legislation, and is co-author of a forthcoming book on violence against abortion providers. He recently interviewed providers all over the country.

“[They] are acutely aware that other providers have been murdered at work by protesters who were able to get too close to clinic workers,” said Cohen. “Buffer zones don’t guarantee that providers won’t be harmed, but they undoubtedly help.”

Volunteer escorts say that protesters often try to intimidate them with the same techniques they see them use on patients.

“They’ll target young women, to try and tell us about the love of Jesus, and that it’s not too late for us,” said Jane.

“They’ve definitely been more aggressive toward men,” said Eli, a 31-year-old escort at Locust Street.

Jane started out volunteering inside the building. She decided to volunteer outside because of what she heard from patients while recovering from surgery.

“Women would ask me, ‘Are they still going to be out there when I leave?’”

While escorts report a gendered approach to “sidewalk counseling” strategies, the big-picture anti-choice protest strategy is gendered also: It may be women who do most of the suing, but it’s been mostly men who have done the shooting.

(Anecdotally, that strategy is reflected also in the introduction and sponsorship of anti-choice bills. Though women only make up approximately 17 percent of the Pennsylvania legislature, they’ve disproportionately introduced recent anti-choice legislation.)

Two Important, Competing Interests

Pennsylvania has always been ground zero in the abortion wars. Just one year after the Supreme Court ruled states could not outlaw abortion altogether, lawmakers in the state introduced measures to limit access to abortion. Early on, they even tried to mandate that a woman notify the man who impregnated her before having an abortion.

An intense 20-year back-and-forth over the legality of various incarnations of the Abortion Control Act resulted in Planned Parenthood v. Casey, the landmark ruling enabled states to pass laws restricting abortion as long as it did not present an “undue burden.” The ruling galvanized anti-choice lobbyists’ shift from focusing on overturning Roe v. Wade to the incremental, access-oriented strategy currently playing out in state legislatures around the country.

According to the Gosnell grand jury, it was the pressure of this hyper-political climate and fear of chiseling away women’s access to abortion that informed the woefully misguided decision made by “high-level government officials” in Gov. Tom Ridge’s administration to not inspect abortion clinics—which led, of course, to Kermit Gosnell.

Supporters and critics of Pennsylvania’s buffer zone bill are now watching the Supreme Court, which recently heard arguments in McCullen v. Coakley, a case examining the constitutionality of a 35-foot buffer zone in Massachusetts.

RH Reality Check Senior Legal Analyst Jessica Pieklo has noted that buffer zones may be a “tough sell” to the high court, given Chief Justice John Roberts’ history of anti-choice activism—he advised President Reagan on anti-choice messaging—and the current composition of the Court.

Meanwhile, a well-documented history of 20 years of anti-choice violence—including eight murders—seems to have been virtually forgotten by the press covering the Supreme Court case. A recent article in the New York Times ignored this history while taking pains to note that the complainant, Eleanor McCullen, is“plump” and petite, and a kindly grandmother. “She is 77, and she said she posed no threat,” reported the Times.

Pro-choice advocates have criticized this overly sympathetic portrait of anti-choice protesters, pushing back that not all protesters are “plump grandmas.”

Certainly, Pennsylvania has experienced anti-choice activism far more threatening than a “plump grandma.”

In 2007, a long-time Pennsylvania anti-choice protester named John Dunkle earned a Freedom of Access to Clinic Entrances (FACE) Act violation. Signed into law in 1994, the FACE Act “makes it a federal crime to injure, intimidate, or interfere with those seeking to obtain or provide reproductive health care services,” though its enforcement is very questionable.

Dunkle “protested” on the Internet and, clinic administrators say, outside clinics as well. His violation was for posting the photograph and address of a local doctor online, as well as “literature suggesting that, ‘while it does not sound good to say go shoot her between the eyes, it sounds even worse to say let her alone.’”

The doctor was so frightened that she appeared in court in a disguise, as the anti-choice activist explained to the judge that his actions were just “part of a debate about how aggressive antiabortion activists should be in pursuing their cause.”

The doctor quit her job. Dunkle had to delete the Internet posts.

Jennifer Boulanger is the former director of Allentown Women’s Center and current director of communications for the Women’s Centers; shehas written publicly about threats on her life stemming from her work in reproductive health. According to Boulanger, Dunkle didn’t stop showing up at clinics after those incidents. He continued to harass women outside the clinics, “despitea permanent injunction barring him from making death threats or otherwise intimidating clinic patients and staff.”

He also continues to maintain a blog, where he posts the names and prison addresses of people convicted of murdering doctors under the heading “prisoners for Christ” along with a call to arms:

I believe we should examine every legitimate means, including force, in our attempt to protect children from being tortured to death.

Several years ago, protests outside Allentown Women’s Center got so serious that clinic escorts bought blue plastic tarps, and started holding them up as a physical shield to enable patients to enter the clinic without being touched and jostled by protesters. In response, the protesters filed a lawsuit alleging that the clinic conspired with the City of Allentown and the Allentown Police Department to deprive them of their First Amendment rights.

A judge dismissed the case in 2011. The next year, Allentown Women’s Center moved to another facility six miles away, in part to try to shake protesters.

After the Allentown clinic moved to its new location, Dunkle was spotted in the parking lot, in a truck with gas cans in the back, according to Boulanger.

Finding Peace

Back on Locust Street, 20-year-old Collin Sceski stands quietly. Sceski, president of Villanovans for Life at Villanova University, says he doesn’t want to talk to patients. He doesn’t consider himself what the clinic protest movement calls a “sidewalk counselor”; he just wants to be a “peaceful presence.”

He drove into the city from the suburbs to stand outside Locust Street with a group of ten or so college friends, but doesn’t want to try to speak to patients at all.

Asked about buffer zones, Sceski said he thinks effective communication can happen 15 feet away. But he told RH Reality Check, “that might not be the point.”

“It’s whether it’s right for them to say we have to be 15 feet away. If I believe that personally I’m better at communicating three feet away, I should have the right to stand three feet away,” he said.

“If there might be a crazy ‘pro-lifer’ who in the moment gets very upset, of course it’s OK to have things there to keep people safe,” he said. “But in a way, we already have laws against battery … we have laws against those things already.”

It’s true, there are laws against those actions, and, in the FACE Act, a law specifically targeting violence and intimidation toward patients seeking reproductive health-care services. The FACE Act is 20 years old this year. And yet, according to a 2010 report on clinic violence, “over the last 35 years, nearly 14 percent of counties with abortion providers have experienced some form of extreme violence defined as an arson attack, bombing, bomb threat, hoax device, murder, attempted murder, butyric acid attack, or vandalism.”

So, while laws provide a protocol for punishment, they seem to be doing a poor job preventing clinic violence. Meanwhile, the intentions and behavior of anti-choice protesters continue to be calibrated on a relative scale: On one end are the “plump grandmas,” like the woman challenging Massachusetts’ buffer zone in the Supreme Court. And on the other end are murderers.

Correction: A version of this article made reference to a Pennsylvania bill that would have required women to notify their father before having an abortion. In fact, the bill would have mandated that a woman notify the man who impregnated her. We regret the error.